1. A district court may allow a plaintiff to amend a petition to include punitive damages if,
based on the evidence and arguments in support thereof, the court finds that the plaintiff
has established that there is a probability that the plaintiff will prevail on the claim. K.S.A.
60-3703.

2. To prevail on a claim of punitive damages, a plaintiff has the burden to prove by clear and
convincing evidence that the defendant acted toward the plaintiff with willful conduct,
wanton conduct, fraud, or malice. K.S.A. 60-3702(c).

3. Wanton conduct is an act performed with a realization of the imminence of danger and a
reckless disregard or complete indifference to the probable consequences of the act.

4. An appellate court's standard of review regarding a trial court's decision to exclude
evidence is abuse of discretion, but the adequacy of the legal basis upon which the district
court relied in coming to such a decision is reviewed de novo.

5. The admission into evidence of expenses that have been paid by a third party is governed
by the common-law collateral source rule, which dictates that benefits received by the
plaintiff from a source wholly independent of and collateral to the wrongdoer will not
diminish the damages otherwise recoverable from the wrongdoer.

6. There are only two exceptions to the collateral source rule under Kansas law. The first
such exception is for medical expenses written off by a provider because of Medicaid
reimbursement. The second exception is for medical expenses written off by a Medicare
provider if, and only if, the Medicare provider is also the named defendant in the action.

STANDRIDGE, J.: Tammy J. Adamson appeals on a number of issues arising out of her
personal injury suit against Kody J. Bicknell. Bicknell filed a cross-appeal with regard to a pretrial
discovery determination made by the district court. For the reasons stated below, we reverse the
district court's decision to deny Adamson's motion to amend petition to include punitive damages
and accordingly remand for a new trial to include a claim for punitive damages. Moreover, we
reverse the district court's decision to exclude evidence of medical expenses in the amount of
$2,823.85 and $6,097.30, medical expenses which ultimately were written off by the medical
provider as a bad debt and a commercial adjustment, respectively.

Facts

On July 11, 2003, Adamson was stopped in traffic at a railroad crossing on Highway 69 in
Crawford County. Adamson noticed a black truck rapidly approaching her from behind and,
anticipating a collision, tried to move her vehicle out of the way. This attempt was unsuccessful
and the truck, driven by Bicknell, impacted Adamson's vehicle and forced her to collide into the
rear of another vehicle stopped in front of her.

Although Adamson told those at the scene of the accident that she was all right, she
reported to the emergency room later that day and complained of a stiff neck. Bicknell and his
passenger were transported to the hospital for their injuries.

Prior to this transport, however, Kansas Highway Patrolman Keith Scott entered
Bicknell's vehicle to search for registration and insurance documentation. According to his
deposition, Scott smelled both burnt and raw marijuana in Bicknell's vehicle. While checking the
vehicle's center console, Scott found marijuana and a pipe. Behind the driver's seat, Scott also
found a nylon bag containing what he believed to be marijuana. After informing the Kansas
Bureau of Investigation of his discovery, Scott had the vehicle towed to the Pittsburg Police
Department to be searched. The search revealed 19 plastic baggies containing marijuana inside the
nylon bag, multiple other bags containing either marijuana or residue, pipes, and a digital scale
with marijuana residue. Bicknell was arrested for possession of depressants with intent to
distribute. It is unclear from the record whether Bicknell was subsequently prosecuted for the
drug charges, but it does appear that he entered into a diversion agreement for driving under the
influence and participated in a drug treatment program.

Adamson ultimately brought a negligence suit against Bicknell. Prior to trial, the parties
filed a number of motions relevant to this appeal: (1) Bicknell's motion for an order of protection;
(2) Adamson's motion to amend her petition to add a claim for punitive damages; and (3)
Bicknell's motion in limine requesting the exclusion of any evidence of medical expense in excess
of that reimbursed by Medicaid.

In his motion for an order of protection, Bicknell petitioned the court for "an order
protecting this Defendant from being deposed by one of Plaintiff's two attorneys." The motion
alleged that one of Adamson's attorneys, Patrick Smith, was "personally involved in a domestic
dispute" with Bicknell's relatives that had "escalated to reported threats of violence and financial
ruin" and that allowing Smith to depose Bicknell would cause Bicknell annoyance,
embarrassment, oppression, and undue burden.

Although the motion for protective order was heard on April 25, 2006, the district court
did not rule on the motion until after the case was over. The hearing transcript is not included in
the record on appeal, but Bicknell asserts that the district court verbally admonished Smith to "'be
cautious'" in deposing Bicknell. After this appeal was docketed, Bicknell filed a motion requesting
that the district court enter a written order on his motion for a protective order. The district court
subsequently issued an order denying the request for protection.

In her motion to amend, Adamson asserted she was entitled to supplement her petition to
add a claim for punitive damages because Bicknell was impaired at the time of the accident. In
support of the motion, Adamson asserted Bicknell admitted at his deposition to smoking
marijuana approximately 4 hours before the accident and, when asked whether he was impaired at
that time, stated, "At the time I definitely would have said no, that it did not impair me. But now
looking back at it, and not doing that stuff for a long time, I'm sure it did have some affect
[sic]
with why I got in the wreck." In addition, Adamson referenced Trooper Scott's report of the
accident, which noted that an illegal drug was present and contributed to the crash. Finally,
Adamson maintained Bicknell submitted to a urinalysis following the accident, within which he
tested positive for marijuana and cocaine.

In opposing Adamson's request to pursue punitive damages against him, Bicknell asserted
there was no evidence he was impaired at the time of the accident and there was no evidence of a
causal relationship between his alleged impairment and the accident. As a result, Bicknell argued
there was little likelihood a jury would find clear and convincing evidence that punitive damages
were warranted.

The district court was persuaded by Bicknell's argument and ultimately denied the motion
to amend. The court found it "unlikely that [Adamson] can prove by clear and convincing
evidence that [Bicknell] was under the influence of drugs to such a degree that [Bicknell's]
operation of his vehicle at the time in question constituted willful or wanton conduct." Adamson
filed a motion to reconsider and, in support, submitted the affidavit of a witness who observed
Bicknell's driving just prior to the crash. The witness observed Bicknell speed and pass erratically
in a no passing zone. At the time of this observation, the witness expressed a belief that Bicknell
would be involved in an accident. Notwithstanding this new evidence, the district court denied the
motion for reconsideration on grounds that, again, Adamson failed to show intoxication or
causation.

In his motion in limine, Bicknell requested the exclusion of any evidence of medical
expense in excess of that reimbursed by Medicaid. Pursuant to a request by the district court that
is not in the record on appeal, the parties filed briefs on the issue. The parties agreed that, under
Bates v. Hogg, 22 Kan. App. 2d 702, 921 P.2d 249, rev. denied 260
Kan. 991 (1996), superseded
on other grounds by statute as stated in Frans v. Gausman, 27 Kan. App. 2d 518, 527, 6
P.3d
432, rev. denied 270 Kan. 897 (2000), expenses written off because of Medicaid
reimbursement
are not admissible. Adamson argued that this exclusion should not apply to other types of
write-offs taken by providers in this case, including alleged write-offs for bad debt, commercial
adjustment, or in-network services. Conversely, Bicknell argued that existing law allowed a
plaintiff to recover only costs that were reimbursed by Medicaid and that any evidence of other
expenses should be excluded.

The district court ultimately permitted introduction of expenses paid by Medicaid,
personal injury protection (PIP), and Adamson's out-of-pocket expenses. However, the court
excluded all other hospital and insurance write-offs because "at all times [Adamson] had Medicaid
available to her."

A jury trial was held on the sole issue of damages. Bicknell's primary defense was that
many of Adamson's injuries and consequent medical expenses were not caused by the accident.
Bicknell's expert physician testified that, in his opinion, Adamson's carpal tunnel syndrome, ulnar
nerve entrapment, tennis elbow, and shoulder injury were not caused by the car accident. The
testimony of Adamson's expert physician, given in a video deposition, is not included in the record
on appeal.

During deliberations, the jury presented two questions to the district court. The first
question concerned the evidence of Adamson's medical bills and asked whether Adamson's
medical expenses were out-of-pocket. After conferring with both parties' counsel, the court
answered:

"The parties have stipulated that the medical expenses represented by Exhibit 7 are
reasonable
charges for the medical services provided to the plaintiff, therefore, under the evidence of the
case there is no dispute that the reasonable charges for medical procedures to the plaintiff are
represented by Exhibit 7. The defendant does dispute the necessity of those expenses being
caused by the accident. Accordingly, if you find the medical services claimed by the plaintiff to
be incurred as a result of the automobile accident, you should award the amounts shown on
Exhibit 7. If you find that not all the services were incurred as a result of the automobile accident,
you have the discretion to award a lesser amount."

The second question asked whether "this decision [will] prevent or incur [sic]
seeking
further damage." Bicknell pointed out that the question did not refer to future lawsuits, but rather
"further damage[s]" and that the court previously had granted Bicknell judgment as a matter of
law on the issues of future medical expenses and future lost wages. The court apparently told the
jury that it was not to consider additional damages that were not in front of them. The actual
answer given to the jury by the court is not included in the record on appeal.

Before the court answered the second question, Adamson moved for a mistrial. In support
of mistrial, Adamson claimed statements made by Bicknell's counsel during closing argument were
prejudicial and made in "an attempt to elicit or extract sympathy on behalf of the defendant."
More specifically, Adamson argued Bicknell's counsel essentially conceded that Bicknell "wasn't
paying attention. . . . And from that day forward we would submit the evidence shows that
[Bicknell] has been trying to do what is right," and that "consistent with [Bicknell] taking
responsibility from the beginning, he and I or we or me on behalf of him, have gone through the
records that we have." Adamson also claimed that the presence of Bicknell's family members at
trial, apparently a prominent family in the area, was prejudicial. Finally, Adamson claimed the
questions presented by the jury indicated that there was "jury misconduct in considering issues
outside of the evidence."

The district court denied the motion, noting that the comments of Bicknell's counsel were
not evidence, that the court had sustained Adamson's two objections to the comments and
instructed counsel to argue the evidence only, and that the comments were harmless. The court
further noted that Adamson's counsel had made comments of a similar nature to which it sustained
objection. On the issue of the presence of Bicknell's family, the court found that citizens have a
right to attend trial, regardless of their relationship to the parties. Regarding the jury questions,
the court stated that it had, and would, instruct the jury to limit its consideration to appropriate
issues.

The jury found that Adamson sustained damages of $11,100 in medical expenses, $7,500
in economic loss, and $5,000 in present noneconomic loss, for a total award of $23,600.

Adamson moved for a new trial, alleging a number of errors. Adamson first claimed that
the verdict was tainted by juror misconduct. In support of this contention, Adamson offered the
affidavit of juror B.S., who stated that the jury considered the existence of insurance to pay
medical expenses and whether an award to Adamson would "[open] the [doors to] further
litigation." Adamson argued the court must assume these improper considerations influenced the
jury's verdict, thus making it invalid. Adamson next argued that the verdict was influenced by the
jurors' passion and prejudice. In support of this contention, Adamson again cited B.S.'s affidavit,
in which B.S. stated that three jurors felt that Adamson should get nothing for medical expenses.
Adamson claims that no reasonable juror would believe that she was due no medical expenses, so
such a belief must have been premised on passion or prejudice. Next, Adamson argued the district
court erred in denying her motion to include a claim for punitive damages, in excluding evidence
of medical expenses charged, and denying her motion for mistrial based on allegedly prejudicial
conduct by Bicknell's counsel. Adamson finally argued that the jury's verdict should be set aside as
inadequate and for additur.

The district court denied the motion for new trial. On the issues of juror misconduct and
passion and prejudice, the court found that neither the jury's questions nor B.S.'s affidavit
established misconduct because there was no evidence that, once instructed, the jury made
improper considerations. The court further found that the conduct of Bicknell's counsel was not
prejudicial. On the issue of punitive damages, the court adopted the reasoning in support of its
initial decision to deny Adamson's motion to amend. Regarding Adamson's claim that the court
erroneously excluded evidence of medical expenses, the court held that, even if the expenses at
issue were not reimbursed by Medicaid, there was no evidence that they were ineligible for
Medicaid payment and thus they were properly excluded. Finally, the district court upheld the
jury's damage verdict, finding that it was supported by the evidence.

Adamson appeals, arguing the district court erred (1) in denying her motion to amend her
petition to include punitive damages; (2) in denying her motion for a new trial based upon the
erroneous exclusion of medical expense evidence; and (3) in denying her motion for a new trial
based upon juror misconduct and the influence of passion or prejudice on the jury's verdict.
Bicknell cross-appeals, claiming the district court erred in denying his motion for a protective
order preventing Adamson's counsel from deposing him.

Analysis

I. Did The District Court Err In Denying Adamson's Motion To Amend Her
Petition To
Include A Claim For Punitive Damages?

A district court's decision not to allow an amendment for punitive damages is reviewed for
an abuse of discretion. Lindsey v. Miami County National Bank, 267 Kan. 685, 689,
984 P.2d
719 (1999). Judicial discretion is abused when judicial action is arbitrary, fanciful, or
unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial
court, then it cannot be said that the trial court abused its discretion. In re Marriage of
Bradley,
282 Kan. 1, 7, 137 P.3d 1030 (2006).

Under K.S.A. 60-3703, a plaintiff may only make a claim for punitive damages upon a
motion to amend the petition to include such a claim. To that end, the district court may allow an
amendment to include punitive damages if, based on the evidence and arguments in support
thereof, the court finds "that the plaintiff has established that there is a probability that the plaintiff
will prevail on the claim." K.S.A. 60-3703. To prevail on a claim of punitive damages, a plaintiff
has the burden to prove "by clear and convincing evidence . . . that the defendant acted toward
the plaintiff with willful conduct, wanton conduct, fraud or malice." K.S.A. 60-3702(c).

The district court, viewing the evidence in the light most favorable to the plaintiff, must
consider the plaintiff's burden of proof as cited above when determining whether to grant the
amendment. Fusaro v. First Family Mtg. Corp., 257 Kan. 794, 801-02, 897 P.2d 123
(1995). As
stated in Fusaro, the district court "shall allow the amendment" when "the evidence is
of sufficient
caliber and quality to allow a rational factfinder to find that the defendant acted towards the
plaintiff with willful conduct, wanton conduct, fraud, or malice." The Fusaro court
went on to
hold that such an "amendment will be allowed when plaintiff has established that there is a
probability that plaintiff will prevail on a punitive claim." 257 Kan. at 802.

In a written journal entry denying Adamson the right to present a claim of punitive
damages to the jury, the court found there was

"no clear and convincing evidence by which a rational fact finder could conclude that
defendant
was smoking marijuana (or cocaine) while he was operating his vehicle or that defendant had
smoked marijuana less than four hours before the accident, or that the marijuana smoked four
hours prior to the accident was sufficient to affect defendant's ability to safely operate his
vehicle."

Put another way, the district court determined that Adamson failed to establish the precise
amount
of marijuana and cocaine in Bicknell's system at the time of the accident and that, without
evidence to quantify the presence of these drugs, it was unlikely Adamson would be able to prove
by clear and convincing evidence at trial that Bicknell acted wantonly. See K.S.A. 60-3702(c);
K.S.A. 60-3703. We disagree with the court's determination in this regard.

"Wanton conduct is an act performed with a realization of the imminence of danger and a
reckless disregard or complete indifference to the probable consequences of the act."
Reeves v.
Carlson, 266 Kan. 310, 313, 969 P.2d 252 (1998). "Wantonness refers to the mental
attitude of
the wrongdoer rather than a particular act of negligence." 266 Kan. at 314.

As a preliminary matter, we do not believe that a lack of evidence regarding intoxication
beyond the legal limit and/or the precise quantity of marijuana and cocaine in Bicknell's system at
the time of the accident is fatal to Adamson's claim that Bicknell was completely indifferent to the
probable consequences of his actions. Wanton conduct is not premised on the existence of a
minimum level of intoxication or quantity of drugs in the system. In fact, a finding that the drugs
ingested by Bicknell did or did not cause Bicknell to crash into Adamson's vehicle is immaterial to
our analysis of whether Bicknell engaged in wanton behavior. The "wanton conduct" giving rise
to the claim for punitive damages "was not the collision, but [Bicknell's] choice to drive under
circumstances that would likely or probably result in a collision." See Reeves, 266
Kan. at 314-15
("Wantonness refers to the mental attitude of the wrongdoer rather than a particular act of
negligence.").

We find the evidence presented here was "of sufficient caliber and quality to allow a
rational factfinder to find" that Bicknell recklessly disregarded the likely result of his conduct. See
Fusaro, 257 Kan. at 802. In other words, we find from the evidence presented here
"'that there
[was] a probability . . . that plaintiff [would have] prevail[ed] on [a punitive] claim.'" 257 Kan. at
802. Bicknell admitted to smoking marijuana approximately 4 hours before the accident.
Moreover, Bicknell submitted to a urinalysis following the accident and tested positive for
marijuana and cocaine. Although part of a diversion agreement in a separate case, Bicknell
admitted to driving under the influence at the time of the accident. In his deposition, Bicknell
acknowledged that marijuana played a role in the accident. There simply is no dispute here that
Bicknell was under the influence of drugs when he got behind the wheel of his car, regardless of
the extent to which he may have been impaired.

Presented with evidence that Bicknell willfully drove a vehicle under the influence of
drugs, regardless of the level of impairment, we believe there was a probability that a jury would
have found by clear and convincing evidence that Bicknell evinced that degree of indifference to
the rights of others which may justly be characterized as reckless disregard. Given the evidence
presented, no reasonable person could find otherwise. Accordingly, we find the district court
abused its discretion in failing to submit the issue of punitive damages to the jury for a
determination on the merits.

II. Did The District Court Err In Excluding Evidence Of Medical Expenses
That Were
Written Off By Medical Providers?

Adamson maintains the district court improperly excluded evidence of medical expenses
that were written off by medical providers for reasons unrelated to Medicaid reimbursement.
Generally, the admission or exclusion of evidence lies within the sound discretion of the trial
court. An appellate court's standard of review regarding a trial court's decision to exclude
evidence is abuse of discretion. Wendt v. University of Kansas Med. Center, 274
Kan. 966, 975,
59 P.3d 325 (2002). With that said, the adequacy of the legal basis upon which the district court
relied in coming to such a decision is reviewed de novo. Miller v. Glacier Development
Co., 284
Kan. 476, 491-92, 161 P.3d 730 (2007).

The admission into evidence of expenses that have been paid by a third party is governed
by the common-law collateral source rule. The rule generally dictates that

"'benefits received by the plaintiff from a source wholly independent of and collateral to
the
wrongdoer will not diminish the damages otherwise recoverable from the wrongdoer.' [Citation
omitted.]

"'"The collateral source rule permits an injured party to recover full compensatory
damages from a tortfeasor irrespective of the payment of any element of those damages by a
source independent of the tortfeasor."' [Citation omitted.]" Bates, 22 Kan. App. 2d at
705.

In Bates, this court created an exception to the collateral source rule for
write-offs made
by providers pursuant to a reimbursement agreement with Medicaid. 22 Kan. App. 2d at 705. The
court reasoned that because a provider is statutorily prohibited from charging a patient for the
difference between the provider's customary charge for care and the amount reimbursed by
Medicaid, "'[i]t would be unconscionable to permit the taxpayers to bear the expense of providing
free medical care to a person and then allow that person to recover damages for medical services
from a tortfeasor and pocket the windfall.' [Citation omitted.]" 22 Kan. App. 2d at 706. Under
Bates therefore, any evidence of medical expenses written off by a provider because
of Medicaid
reimbursement must be excluded from trial.

The Kansas Supreme Court next considered the application of the collateral source rule as
it applied to medical write-offs in Rose v. Via Christi Health Systems, Inc., 276 Kan.
539, 551, 78
P.3d 798 (2003) (RoseI). Rose I was a medical malpractice
case in which the defendant health
care provider had written off certain expenses pursuant to a reimbursement agreement with
Medicare. Finding that the collateral source rule applied, the district allowed the plaintiff to
present evidence of these written-off expenses. The jury returned a verdict for the plaintiff, and
the defendant filed a motion to offset the award by the medical expenses it wrote off. The district
court granted the motion to offset, which the plaintiff appealed. The provider cross-appealed the
district court's ruling allowing evidence of the write-offs in the first place. On appeal, the
defendant provider claimed that Bates should apply and that evidence of the
write-offs should
have been excluded, while the plaintiff argued that Medicare should be distinguished from
Medicaid and treated like private insurance (and thus subject to the collateral source rule) because
"Medicare benefits are purchased by payroll deductions and Medicaid benefits are free to all who
qualify." 276 Kan. at 545.

After reviewing national case law, the court agreed with the plaintiff/appellant. 276 Kan.
at 551. The majority was guided in this decision by the public policy rationale that the tortfeasor
"should bear the full liability of his or her tortious actions without regard to the injured parties'
method of financing his or her treatment" and that any windfall should inure to the benefit of the
injured party. 276 Kan. at 551. The court held that Medicare should be treated as private
insurance and that the collateral source rule should apply to Medicare payments. 276 Kan. at 551.
The court thus implicitly limited Bates to exclude only those provider write-offs made
pursuant to
Medicaid reimbursement.

The Supreme Court granted a motion to rehear Rose. See Rose v. Via
Christi Health
System, Inc., 279 Kan. 523, 113 P.3d 241 (2005) (Rose II). In Rose
II, the Supreme Court
applied the collateral source rule to affirm the trial court's decision to grant an offset to the
defendant since the setoff or credit was not provided by a collateral source but, rather, from the
tortfeasor itself. The court limited its holding to the specific facts of the case before it in which the
Medicare provider "is the defendant and also the health care provider of the services which form
the basis of the economic damages claim." 279 Kan. at 533. In so holding, the court expressly
refrained from reaching "the broader issue of whether Medicare or a Medicare write off, when the
services are provided by a health care provider that is not a defendant, is a collateral source." 279
Kan. at 534.

In Rose I, our Supreme Court permitted the admission of evidence of medical
expenses
written off by a medical provider pursuant to a Medicare contract. 276 Kan. at 551. In Rose
II,
the court expressly avoided the Medicare/Medicaid distinction in applying the collateral source
rule to exclude evidence of medical expenses for services rendered, but written off, by the
tortfeasor. 279 Kan. at 533-34. Thus, there presently is no controlling law in Kansas that excludes
evidence of medical expenses that are written off by medical providers other than in instances in
which the expense is paid by Medicaid (Bates) or in instances in which the provider is
the claimed
tortfeasor (Rose II).

Adamson maintains the district court improperly excluded the following medical expenses
based on an erroneous factual finding by the court that they were written off by the medical
provider solely in relation to Medicaid reimbursement: a $3,879.65 "in-network" write-off, a
$2,823.85 "bad debt" write-off, and a $6,097.30 "commercial adjustment" write-off. Based on the
applicable law as set forth in Bates that evidence of medical expenses written off
pursuant to
Medicaid requirements must be excluded from evidence, the definitive issue on appeal is whether
the district court abused its discretion in deciding that the write-offs in dispute were made
pursuant to Medicaid requirements.

We begin our analysis by reviewing the evidence presented to the district court on this
issue. Attached to her trial brief, Adamson submitted to the district court a document dated July
12, 2007, reflecting the current status of her account from Doctors Specialty Hospital. We find it
helpful to summarize the relevant portions of this statement. In so doing, we have (1) underlined
the payor as designated by the medical provider, and (2) italicized those write-offs Adamson
contends are unrelated to Medicaid requirements.

A review of the record reveals no additional evidence was submitted to the district court
regarding whether the three write-offs in dispute were related to Medicaid requirements. Thus,
the district court's finding (that the medical provider write-offs were related to Medicaid
reimbursement) had to have been based on the statement summarized above. We find the evidence
does not support the court's decision in this regard.

As a preliminary matter, the "Self Pay" designation for medical expenses incurred by
Adamson on January 12, 2004, indicates that the designated payor is not Medicaid, but Adamson
herself. Similarly, the "Horace Mann Insurance" designation for medical expenses incurred by
Adamson on November 11, 2003, indicates that the designated payor was not Medicaid, but an
insurance company providing personal injury protection (PIP). There simply is no evidence to
support a finding that the $2,823.85 bad debt write-off or the $6,097.30 commercial adjustment
write-offs made by the medical provider were related to Medicaid reimbursement. Given the
complete lack of evidence linking these write-offs to Medicaid, no reasonable person could find
otherwise. Given no other controlling law in Kansas excluding them from the scope of the
collateral source rule, we find the district court abused its discretion in excluding evidence of
these particular write-offs.

Alternatively, the "Medicaid" designation for medical expenses incurred by Adamson on
January 17, 2005, indicates that the designated payor was Medicaid. In fact, the statement
indicates that the provider received a $1,085.81 payment from Medicaid on February 4, 2005,
and, on that same day, the provider wrote off $14,327.13 using the designation "Medicaid
Adjustment." Almost 2 years after the $14,327.13 Medicaid write-off, the provider wrote-off an
additional $3,879.65, this time designating the write-off as an "In-Network Adjustment." There is
no further explanation of this adjustment in the record. Although the designation contains no
reference to Medicaid and there is no indication that this amount was billed to Medicaid or that
Medicaid refused to pay the bill, we find sufficient evidence to support a finding that the
adjustment was related to Medicaid reimbursement. More specifically, the statement indicates that
$19,292.59 in medical expenses were incurred by Adamson for care received on January 17,
2005. Given the provider received a $1,085.81 payment from Medicaid on February 4, 2005, with
regard to this care, it is reasonable to conclude that Medicaid, as the designated payor for the
services provided on this day, was billed the entire $19,292.59 and paid only $1,085.81. Under
these circumstances, the evidence supports a finding that the October 31, 2006, write-off in the
amount of $3,879.65 was related to the February 4, 2005, Medicaid reimbursement. As such, the
district court did not err in excluding evidence of this particular write-off.

III. Did The District Court Err In Denying Adamson's Motion For New
Trial?

Given our decision, as set forth in the conclusion below, to remand this case for a new
trial, it is unnecessary for us to consider Adamson's claim that the district court erred in denying
her motion for a new trial on grounds that there was juror misconduct and that the jury came to
its verdict under the influence of passion or prejudice.

IV. Did The District Court Err In Denying Bicknell's Motion For Protective
Order?

The final issue in this case is Bicknell's cross-appeal of the district court's decision to deny
his motion for a protective order. In his motion, Bicknell requested that Adamson's attorney
Patrick Smith be prevented from conducting Bicknell's deposition. At a hearing on the motion, the
court declined to grant Bicknell's request and directed Smith to "'be cautious'" in deposing
Bicknell. Given the deposition went forward as planned, we find the issue raised by Bicknell in his
cross-appeal is moot because there is no longer a remedy available in law. To that end, the
controversy submitted by Bicknell on appeal already has been resolved and the only judgment that
could be entered would be ineffectual for any purpose and an idle act insofar as rights involved in
the case are concerned. See In re M.R., 272 Kan. 1335, 1339, 38 P.3d 694 (2002).

Conclusion

For the reasons set forth above, we reverse the district court's decision to deny Adamson's
motion to amend petition to include punitive damages and accordingly remand for a new trial to
include a claim for punitive damages. Moreover, we reverse the district court's decision to exclude
evidence of medical expenses in the amount of $2,823.85 and $6,097.30, medical expenses which
ultimately were written off by the medical provider as a bad debt and a commercial adjustment,
respectively. At the new trial, the district court shall deem these expenses to be within the scope
of the collateral source rule and therefore allow introduction of them as evidence. Finally, we
dismiss as moot the discovery issue raised by Bicknell in his cross-appeal.

Dismissed in part, reversed in part, and remanded with instructions.

1. Although the statement identifies the bad debt write-off as $3.00,
we deem this to be an
accounting error based on arguments set forth by Adamson in her trial brief, which are supported
by the fact that the original balance for this service was $2,823.85 and the current balance is $0.
Accordingly, we have included an undated bad debt write-off for the correct amount of
$2,823.85.